Campbell v. City Council of Lynn

• Decision Date: 10 April 1992
• Docket Number: 90-P-1108,Nos. 90-P-192,s. 90-P-192
• Citation: 586 N.E.2d 1009,32 Mass.App.Ct. 152
• Parties: John CAMPBELL et al. 1 v. CITY COUNCIL OF LYNN et al. 2 (and a companion case 3 ).
• Court: Appeals Court of Massachusetts

Page 1009

586 N.E.2d 1009

32 Mass.App.Ct. 152

John CAMPBELL et al.¹

v.

CITY COUNCIL OF LYNN et al. ² (and a companion case ³).

Nos. 90-P-192, 90-P-1108.

Appeals Court of Massachusetts Suffolk.

Argued April 12, 1991.

Decided Feb. 19, 1992.

Further Appellate Review

Granted April 10, 1992.

George E. Richardson, Boston, for plaintiffs.

Michael J. Barry, Asst. City Sol., for defendants, submitted a brief.

Before BROWN, PERRETTA and PORADA, JJ.

BROWN, Justice.

This is a nimby--not in my backyard--case.In February, 1988, the Lynn city council (city council) granted a special permit to the owners of a dwelling located at 12Morris Street in Lynn to use the premises as a group residence for fifteen elderly, mentally ill individuals.The owners intend to lease the premises to Greater Lynn Senior Services (Senior Services), a nonprofit corporation that, together with the Department of Mental Health, is to provide on-site staffing and support services to the residents.⁴The Lynn Housing Authority is to provide rental subsidies to the residents and participate in screening individuals for placement.

The plaintiffs appealed from the decision of the city council to the Superior Court, which upheld the granting of the special permit and found that, pursuant to G.L. c. 40A, § 3, the intended use of the premises "is a use which could not be prohibited by a local zoning ordinance."In June, 1988, the owners were issued a building permit to begin repairs and alterations on the premises for the group home.The plaintiffs objected to the issuance of the building permit and appealed to the Lynn zoning board of appeals (board).Following a public hearing, the board upheld the issuance of the building permit.From this decision, the plaintiffs appealed to the Land Court.The Land Court judge, relying in part on the decision of the Superior Court, ruled that the premises were exempt from regulation because of their proposed educational use and, further, that, although certain zoning requirements may be imposed by the city of Lynn under G.L. c. 40A, § 3, the city of Lynn has not attempted to apply the general provisions of its zoning ordinance to this particular site and the site therefore is free from the provisions of the zoning ordinance.We find nothing in the record of these two proceedings that would cause us to reverse the judgment of either court.

On appeal, the plaintiffs argue that the premises are not exempt from the Lynn zoning ordinance.Chapter 40A, § 3, contains the successor to the so-called "Dover Amendment"⁵ which, as inserted by St.1975, c. 808, § 3, provides, in relevant part, that "[n]o zoning ordinance or by-law shall ... prohibit, regulate or restrict the use of land or structures for religious purposes or for educational purposes on land owned or leased by the commonwealth or any of its agencies, subdivisions or bodies politic or by a religious sect or denomination, or by a nonprofit educational corporation; provided, however, that such land or structures may be subject to reasonable regulations concerning the bulk and height of structures and determining yard sizes, lot area, setbacks, open space, parking and building coverage requirements"(emphasis supplied).There can be no doubt that the property at issue in this case, if used as a group residence for elderly, mentally ill individuals, would come within the meaning of the term "educational purpose.""Education has long been recognized in the courts of this Commonwealth as a 'broad and comprehensive term.' "Commissioner of Code Inspection of Worcester v. Worcester Dynamy, Inc., 11 Mass.App.Ct. 97, 99, 413 N.E.2d 1151(1980), and cases cited.That this facility will be residential or that it will serve elderly individuals does not deprive it of its educational character.SeeFitchburg Hous. Authy. v. Board of Zoning Appeals of Fitchburg, 380 Mass. 869, 873, 406 N.E.2d 1006(1980);Harbor Schools, Inc. v. Board of Appeals of Haverhill, 5 Mass.App.Ct. 600, 605, 366 N.E.2d 764(1977).Nor does it matter that the educational activities are somewhat outside of the realm of a traditional curriculum."The proposed facility would fulfil a significant educational goal in preparing its residents to live by themselves outside the institutional setting.Instruction in the activities of daily living is neither trivial nor unnecessary to these persons....Inculcating a basic understanding of how to cope with everyday problems and to maintain oneself in society is incontestably an educational process."Fitchburg Hous. Authy. v. Board of Zoning Appeals of Fitchburg, 380 Mass. at 875, 406 N.E.2d 1006.

Even though the premises are to be used for an educational purpose, the plaintiffs argue that they are not exempt under § 3 because they are not "owned or leased by the commonwealth or any of its agencies, subdivisions or bodies politic," as required by the statute.To the contrary, the Superior Court judge determined that the Lynn Housing Authority would be the tenant of record, and that finding is not clearly erroneous (seeMass.R.Civ.P. 52[a], 365 Mass. 816[1974] ): the record demonstrates that both the Lynn Housing Authority and Senior Services will be signatories on the lease with the owners of the property.The Lynn Housing Authority's role under the lease is to provide financial assistance to the individual residents in the form of subsidy payments directly to the landlord, i.e., the Authority furnishes at least a significant portion of the rent.Senior Services, referred to as the "tenant" on the lease, will be responsible for the activities of the residents and for maintaining the premises and preventing damage to the property.Irrespective of labels, both the Authority and Senior Services perform obligations generally imposed on tenants under a lease, and the Authority will perform the primary obligation of paying rent.

The plaintiffs also overlook the language in G.L. c. 40A, § 3, which provides that property is exempt if owned or leased by a nonprofit educational corporation.Gardner-Athol Area Mental Health Assn. v. Zoning Bd. of Appeals of Gardner, 401 Mass. 12, 513 N.E.2d 1272(1987), is instructive on this point: there, the Supreme Judicial Court noted that "[t]here is nothing in G.L. c. 40A, § 3, ... that requires that education be the dominant purpose or primary activity of a nonprofit corporation in order that it may qualify as a nonprofit educational corporation under § 3....The proper test in deciding whether a nonprofit corporation is an educational one is whether its articles of organization permit it to engage in educational activities...."Id. at 15-16, 513 N.E.2d 1272.

Senior Services is a nonprofit corporation organized pursuant to G.L. c. 180.The supportive services to be provided by that organization to the residents of the proposed facility are educational in nature and are permitted by its articles of incorporation.⁶Thus, we have no difficulty in concluding that the subject premises are exempt from regulation as an educational use.

The plaintiffs next argue that, if the use of the property cannot be regulated or prohibited, the property is still subject to regulations concerning bulk and height, yard sizes, lot area, parking, and other dimensional requirements.Merely because G.L. c. 40A, § 3, states that a city or town "may" subject exempt premises to "reasonable regulation," however, does not mean that the city or town is somehow compelled to do so.Simple rules of statutory construction lead to the obvious conclusion that, where statutes state "may" rather than "shall," the application of the statutory requirements is permissive rather than mandatory."The distinction in statutes between 'shall,' a word of command, and 'may,' a word of permission, is not one which courts pass over lightly unless context or other provisions require it."Salem Hosp. v. Rate Setting Commn., 26 Mass.App.Ct. 323, 325, 526 N.E.2d 1326(1988)."The word 'may' in a statute commonly imports discretion."Turnpike Amusement Park, Inc. v. Licensing Commn. of Cambridge, 343 Mass. 435, 437, 179 N.E.2d 322(1962)."There is nothing in the general context of the statute or the purpose for which it was enacted that requires a different construction."Id. at 437-438, 179 N.E.2d 322.We find no error in the fact that the city council chose not to impose specific parking and dimensional restrictions on this site.⁷

We also think that the city council acted properly in issuing a special permit to the owners in this case and that the permit has the effect of relieving the owners of the property from compliance with the general dimensional and parking regulations of the Lynn zoning ordinance.Section 18 of the Lynn zoning ordinance requires the permission of the city council to allow a group residence in a business district.The ordinance also requires that no permit be approved without considering the effects upon the neighborhood and the city.Following public hearings on the issue, the city council issued its decision, concluding that "(a)[t]he proposed use will besafe and attractive for the area[,](b)[n]o substantial burden will be placed upon the city for services[,](c)[n]o detrimental...